The Attorney General of India, Mukul Rohatgi opened arguments in the Supreme Court by citing the example of Pakistan which had discontinued triple talaq. If a Muslim majority country such as Pakistan can do away with triple talaq, then why is India still continuing with it the AG asked.
How triple talaq was done away with in Pakistan has an interesting history to it. In 1955, the then Prime Minister, Muhammad Ali Bogra married his secretary even though he had not divorced his first wife. This led to wide-spread protests by the All Pakistan Women's Association which sought for a change in the law.
How it works in Pakistan
Following the protests in Pakistan a seven member commission on Marriage and family laws. In 1956, the commission recommended that the pronouncement of three talaqs in one session must be counted as one. Further it was said that for a divorce to be effective the husband must pronounce talaq in three successive tuhrs, and that he could not divorce his wife till the time he secures an order to this effect from a matrimonial and family court.
The last recommendation was criticised by a commission member, Maulana Ehtesham-ul-Haq Thanavi. In his dissent note, the Maulana said the recommendation requiring the husband to seek an order from a court before giving talaq amounted not only to "tampering with the injunctions of the faith but also putting obstacles in the way of dissolution even when it becomes necessary and desirable. It was because of this objection that the Pakistani government did not provide for a court's intervention in divorce when the Muslim Family Law Ordinance in 1961 was passed.
Section 7 of the Ordinance
There are six subsections to Section 7 of this Ordinance. Any man after pronouncing talaq in any form has to give notice to the Chairman of the Union Council informing him about it and also provide a copy to his wife.
- Failure to do so could invite punishment up to one year or a fine of Rs 5,000.
- A talaq will not be effective until the expiry of 90 days after the man had served notice to the chairman.
- Within 30 days of receiving the notice, the chairman is required to constitute an arbitration council for reconciling the couples.
- If the wife is pregnant, the talaq shall not be effective until the expiry of 90 days or the pregnancy, whichever is later;
- "Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from marrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time, so effective."
Triple talaq abolished
Many eminent jurists said that Section 7 (6) of the ordinance had implicitly abolished the system of triple talaq or Talaq-ul-Bidat. This is because even though subsection (1) speaks of talaq in any form thereby including Ahsan, Hasan and Talaq-ul-Bidat - the other provisions of the ordinance makes the procedure of reconciliation mandatory. However, since no reconciliation is possible when triple talaq is given in one session and the marriage stands dissolved forthwith, the ordinance is said to have impliedly abolished Talaq-ul-Bidat.
Abolished in Bangladesh as well
When Bangladesh was born in 1971, it regulated marriage and divorce laws. It was very much on the lines of Pakistan itself. Consequently, triple talaq remains abolished in Bangladesh as well. Judicial verdicts on such cases whether or not the failure to give notice to the chairman of Union Council leads to automatic revocation of divorce.